FAQIR SINGH Vs. MAGHAR SINGH

JUDGEMENT

(1.) Maghar Singh filed a suit for joint possession of 1/3rd share of land measuring 129 Kanals as detailed in the plaint situated in village Majra Manna Singh Wala on the basis of a Will dated July 27, 1968 executed by Mihan Singh his uncle. In the said Will the other 2/3rd share was given to the defendants Faqir Singh and Jagir Singh, who are brothers of the plaintiff Maghar Singh. The parties were serving Mihan Singh in his old age. In the absence of the plaintiff, Faqir Singh got a decree from Mihan Singh by misrepresentation and taking undue advantage of his old age. On coming to know of the said decree Mihan Singh in order to ignore the same effected a family partition giving 1/3rd share to the plaintiff and to each of the defendants. This happened in September, 1972. Faqir Singh defendant admitted the said arrangement ignorting the decree. Since Faqir Singh wanted to resile from this arrangement Maghar Singh filed a suit for declaration impleading Mihan Singh also as a Party. During the pendency of the said suit Mihan Singh died in September, 1973. The said suit was withdrawn in September, 1978 with permission to file fresh suit. Hence, the present suit was filed for possession of 1/3rd share as stated above. Faqir Singh contested the suit, inter alia, alleging that Mihan Singh had gifted about 60 Kanals of land several years ago and in this respect Mihan Singh also suffered a compromise decree on April 4, 1972. With regard to the remaining land of Mihan Singh as was alleged that the same was partitioned between the parties 1/3rd each and the said decree did not require registration as was alleged by the plaintiff. The plaintiff was in the Military and was not rendering any services to Mihan Singh. It was Faqir Singh who was looking after Mihan Singh. The execution of the Will executed by Mihan Singh was denied. In the alternative it was stated that the same was effective only with respect to the property left by Mihan Singh at the time of his death. It was further alleged that Mihan Singh admitted the compromise decree in the written statement filed in the previous suit. Thus there was no question of misrepresentation or fraud. Jagir Singh defendant No. 2 admitted the claim of the plaintiff. In the replication plaintiff controverted the allegations of Faqir Singh defendant. The trial proceeded on the following issues-

(2.) In R.S.A. No. 2061 of 1987, Gurdev Kaur v. Mehar Singh decided on July 28, 1988, 1989 2 RCR(Rent) 625 we have held that a compromise or consent decree does not require registration even if it creates title in respect of immovable property of Rs. 100/- or more. We have further held that a compromise or consent decree can be got set aside on one of the grounds on which a contract can be set aside namely if obtained by fraud, misrepresentation or coercion. If these grounds are not established, the court in a subsequent suit would not be entitled to go behind the decree. That being the position, the compromise decree dated April 4, 1972 cannot be held to be null and void for want of registration. The learned appellate Court was thus in error in holding to the contrary. The contention of the counsel for the respondents is that in exhibit P. 1, the subsequent family arrangement, Mihan Singh ignored the aforesaid decree buy making partition of this entire land among the parties, 1/3rd share each and this for all intents and purposes no rights under the decree were acquired by Faqir Singh. This contention cannot be accepted. Firstly, in the previous suit Mihan Singh filed written statement admitting the fact that he had suffered the compromise decree. Secondly, a decree could not be ignored as is alleged by Maghar Singh. Under the decree Faqir Singh had acquired title to 60 Kanals of land out of 129 Kanals of land belonging to Mihan Singh. Mihan Singh could not divest faqir Singh of such rights like that. Exhibit P.1 the alleged family settlement was rightly ignored as inadmissible for want of registration. It purports to extinguish or create right in respect to property of the value of more than Rs. 100/-.

(3.) There is no dispute in this appeal with regard to the execution of the Will by Mihan Singh in favour of the parties i.e. Faqir Singh, Mahar Singh and Jagir Singh. Under this Will these three brothers would get 1/3rd share each in respect of the property held by Mihan Singh at the time of his death meaning thereby that 60 Kanals of land held to belong to Faqir Singh under the compromise decree will not be effected by this Will.